A new investigation into the death of the American journalist Daniel Pearl says that the British jihadist jailed for his murder is likely to be released because Pakistani officials used tainted evidence.

The report, by a collective of American investigative journalists, asserts that Pakistani prosecutors knowingly used perjured evidence to suggest that Omar Saeed Sheikh and three other men were in the room where the Wall Street Journal reporter was killed in 2002.

American officials have found evidence based on “vein analysis” that the killing was carried out by the self-confessed 9/11 mastermind, Khalid Sheikh Muhammad, who is in Guantánamo Bay. Muhammad confessed to the murder in 2007, but lawyers said his testimony was tainted by torture and he has not been charged.

But the report author Asra Nomani said there was little doubt that Sheikh, now 37 and facing a death sentence, was behind Pearl’s initial kidnapping. “He was the mastermind behind it and should be held responsible for that,” she said.

Sheikh’s appeal has been pending for nine years in Pakistan and shows no sign of taking place soon. There have been repeated reports that, thanks to his connections with Pakistan’s ISI spy agency, he enjoys privileged conditions in jail.

Read related article “Briton jailed for Daniel Pearl’s murder is ‘likely to be freed'” in the Guardian here.

1. (C) Summary: In a November 13 meeting, the Ambassador and Interior Minister Sherpao reviewed U.S.-Pakistani cooperation on the investigation into the 2006 Karachi Consulate bombing. Sherpao assured the Ambassador that the Government of Pakistan (GOP) is committed to defending the conviction of Omar Saeed Sheikh for the 2002 murder of Wall Street Journal reporter Daniel Pearl. The Minister re-affirmed that government plans to charge the leader of a Punjab-based militant organization under the Security of Pakistan Act, but said that the arrest would be delayed until later in November. Sherpao was receptive to the Ambassador’s suggestion that his Ministry establish a dedicated intellectual property rights unit in the Federal Investigative Agency (FIA), but did not respond to the Ambassador’s query regarding the whereabouts of missing AMCIT Dr. Sardar Sarki. End summary.

FBI Cooperation

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2. (C) The Ambassador opened the conversation by previewing the November 17 visit of FBI Director Robert Mueller to Islamabad and reviewing the status of FBI cooperation with the GOP on several high-profile terrorism cases. Minister Sherpao indicated that arrangements would soon be made to allow Embassy LEGAT officers access to two suspects in the March 2006 Karachi Consulate bombing. Sherpao noted that the third suspect in the case — Qari Zafar, believed to be the mastermind behind the attack — has absconded to North Waziristan Agency. According to the Minister, police authorities came close to capturing Zafar during the recent Eid-al-Fitr holiday; investigators continue to follow his trail. The Ambassador was pleased to hear that investigators are pursuing Zafar vigorously, both to bring him to justice and for his potential value as a source of information regarding this sophisticated terror attack. Sherpao also volunteered that the Ministry should be able to arrange for LEGAT officers to have access to Federal Investigation Agency (FIA) reports before Director Mueller’s arrival.

Omar Saeed Sheikh

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3. (C) The Ambassador asked about the status of the case against Omar Saeed Sheikh, who was convicted in the kidnapping and murder of Daniel Pearl in 2002. The Ambassador stressed that the U.S. shares the GOP’s determination that Sheikh not escape justice through some legal loophole and observed that there are two active indictments against Sheikh pending in U.S. courts, Sherpao assured the Ambassador that an interagency team comprising MOI, the Law Ministry and the National Police Bureau is following this case closely. XXXXXXXXXXXX. Authorities have been carefully monitoring Sheikh’s activities in prison, shifting him between high-security facilities in order to prevent him from enlisting assistance or support from fellow inmates or

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prison employees. Sherpao acknowledged the Ambassador’s comments that the U.S. would be eager to discuss transferring Sheikh to face prosecution in American courts if it appeared that he might win his current appeal, but declined to respond directly to the offer, saying that he is confident that the Pakistani conviction would hold and that Sheikh would be executed as sentenced. (Note: According to Sherpao, the interagency team guiding the GOP’s prosecution of Sheikh has also been tasked with reviewing all high-profile terror cases, traveling to each province to review files and offer guidance to local prosecutors. Sherpao said that the Chief Justice of the Pakistan Supreme Court has convened provincial Criminal Investigation Division (CID) Inspectors General and Home Secretaries to coordinate enhanced training and support for judges presiding in terror-related cases. The outreach is intended to stiffen the judges’ resolve in the face of potential intimidation and to reduce procedural delays. End note.)

Hafiz Saeed

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4. (C) The Ambassador also questioned Sherpao about the GOP case against Lashkar-e-Tayyba/Jammat ud-Dawa (LeT/JuD) leader Hafiz Mohammad Saeed. (Ref A) Sherpao repeated his earlier assurance that Saeed would be re-arrested, this time under the Security of Pakistan Act. Heightened domestic sensitivities following the October 31 Pak Mil air strike on a militant madrassa in Bajaur (Ref B) and the apparent retaliatory suicide attack on an Army training facility in Dirgai (Ref C) argued against proceeding against Saeed immediately, Sherpao said. He predicted that Saeed would be taken into custody again following the November 20 (?) visit of UK Prime Minister Blair to Pakistan. In the meantime, security agents are closely monitoring Saeed’s activities.

Intellectual Property Rights

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5. (C) The Ambassador commended the MOI for its cooperation with the Embassy in building local capacity to protect intellectual property rights (IPR), noting that the U.S. has developed an excellent relationship with FIA personnel enforcing IPR laws. The U.S. is willing to commit additional resources toward capacity building, but suggests that the FIA first establish a dedicated IPR unit so that newly-trained personnel are not transferred to non-IPR duties. The Minister called this a sensible suggestion and asked his staff to follow up with the Embassy.

Missing Amcit

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6. (C) The Ambassador raised ongoing U.S. concern for the welfare of AMCIT Dr. Sardar Sarki, who disappeared from his home in Karachi in February 2006. (Ref C) A credible report in a respected Pakistani news magazine supports the belief of Dr. Sarki’s family that he is in the custody of Pakistani security forces. The Embassy is not taking a position on possible GOP charges against Sarki, the Ambassador said, but we need to know where he is and to have consular access to him. Minister Sherpao listened to the Ambassador’s remarks without comment.

1. (C) Poloff delivered reftel demarche and associated non-paper and diplomatic note on the transfer of Ahmad Omar Saeed Sheikh to the U.S. to MFA Director for Americas Sohail Khan on November 25. Per reftel instructions, she specifically requested that while the request for transfer of Sheikh was being considered, Pakistan provide written assurances that Sheikh will remain in custody throughout the appeals process. Khan responded that the case of Sheikh was a “sensitive” issue and while the case was still open, i.e. “subjudice,” the government had little power to transfer Sheikh. However, Khan said that he would refer the diplomatic note and requests to the MFA’s legal department for a formal response. Post will follow-up with the MFA’s legal department to obtain the formal response and seek the written assurance of Sheikh’s continued detention.

1. (C) On August 13, the Sindh High Court yet again continued the adjournment in the appellate case of Omar Saeed Sheikh, the convicted murderer of U.S. journalist Daniel Pearl. According to Pakistani legal experts, the refusal of the Court to hear the appeal or set a date for further hearings places Sheikh’s case in “sine-die adjournment” status, which means that his appeal proceedings are adjourned for an indefinite period of time. Sheikh was found guilty of murdering Pearl by a Karachi Court in 2002 and was sentenced to death. Before the indefinite adjournment, Sheikh’s attorneys were attempting to appeal the verdict and sentence to the Sindh High Court. The prosecutor had filed a separate appeal with the High Court requesting tougher sentences for all individuals convicted of providing assistance to Omar Saeed Sheikh in the murder.

2. (C) In Sheikh’s now dormant appeal, his lawyers had challenged the veracity of the testimony of some of the witnesses in the initial trial. As a result, the High Court ordered the lower court to re-hear witnesses’ statements. In fact, most of the witnesses whose testimony is in question are not available to provide statements in future proceedings. Many have moved outside of Pakistan because they fear for their safety and security, since it is widely believed that supporters of Sheikh would threaten, harm, or kill the witnesses in order to prevent them from testifying. The unavailability of witnesses makes this aspect of the appeal almost impossible to pursue.

3. (C) In any event, neither Sheikh’s attorneys nor the Pakistani government has pursued the lower court re-hearing because both sides understand this could open up a can of worms, with the lower court delving into other aspects of the case, including the sentencing. The potential downside for Sheikh is that, in this event, the lower court could order swift implementation of the death penalty. Post’s understanding, from speaking with Pakistani legal experts, is that the prosecutor and Sheikh’s attorneys are thus passively allowing the current verdict and sentence to stand. Additionally, our legal contacts agree that, since Sheikh has received the death sentence, the chance of any successful appeal to the Sindh High Court is minimal.

4. (C) Sheikh was transferred from a prison in Hyderabad, Sindh to a high-security prison in Karachi in August 2009. Embassy legal contacts advised that this transfer was part of regular prison procedure and not due to immediate security concerns or for pre-staging Sheikh for his release. It is Pakistani government policy to shift prisoners between prisons every two to three years for routine security and administrative reasons. Additionally, prisoners can request to be transferred to a different prison located closer to their relatives to facilitate family visitation.

5. (C) Comment: Though Sheikh’s appeals still formally exists in the Sindh High Court, Pakistani legal observers agree that his case is indefinitely adjourned. In the Pakistani context, this means that all the suspects can be kept incarcerated without any foreseeable end. With Sheikh’s murder conviction and death sentence, there is, in fact, no legal or political will to release him or reverse his sentence. Sheikh’s prison transfer does not, in Post’s opinion, indicate a move to release him. Post will follow up on this matter in political channels to ensure that Sheikh’s conviction and sentence stay in force. End Comment.

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